Central Administrative Tribunal - Ernakulam
Original Application No. ... vs Union Of India on 30 August, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 180/00350/2015
Original Application No. 180/00589/2015
Original Application No. 180/00644/2015
Original Application No. 180/00008/2016
Original Application No. 180/00009/2016
Tuesday, this the 30th day of August, 2016
CORAM:
HON'BLE MR. U. SARATHCHANDRAN, JUDICIAL MEMBER
1. Original Application No. 180/00350/2015 -
M. Gangadharan Nair, aged 57 years, S/o. S. Madhavan Pillai,
Senior Gate Keeper, Office of the Senior Section Engineer/
Permanent Way/ Trivandrum Central, Residing at :
Arrapuravilakathu Veedu, Koottapana, Neyyattinkara PO,
Kerala, Pin - 695 121. ... Applicant
(By Advocate - Mr. T.C. Govindaswamy)
Versus
1. Union of India, represented by the General Manager,
Southern Railway Headquarters Office, Park Town PO,
Chennai - 600 003.
2. The Chief Medical Superintendent, Railway Hospital,
Pettah, Thiruvananthapuram - 695 037.
3. The Chief Medical Director, Southern Railway, Headquarters,
Moore Market Complex, Park Town PO, Chennai - 600 003.
4. The Divisional Personnel Officer, Southern Railway,
Thiruvananthapuram Divisional Office, Thiruvananthapuram-695 014.
5. The Divisional Railway Manager, Southern Railway,
Thiruvananthapuram Divisional Office,
Thiruvananthapuram - 695 014. ... Respondents
(By Advocate : Mr. Sunil Jacob Jose)
2. Original Application No. 180/00589/2015 -
1. V.D. Davis aged 55 years, S/o. V.O. Devassy,
Pointsman Gr.I/Southern Railway/Angamali Railway Station/
Trivandrum Division, Residing at : Vadakkumpadan House,
West Chalakudi, Mathew Nagar, Chalakudi-680 307,
Trichur District.
2. Disaj V. Davis, aged 29 years, S/o. V.D. Davis,
Residing at : Vadakkumpadan House, West Chalakudi,
Mathew Nagar, Chalakudi - 680 307,
Trichur District. ... Applicants
(By Advocate - Mr. T.C. Govindaswamy)
Versus
1. Union of India, represented by the General Manager,
Southern Railway Headquarters Office, Park Town PO,
Chennai - 600 003.
2. The Chief Medical Superintendent, Railway Hospital,
Pettah, Thiruvananthapuram - 695 037.
3. The Chief Medical Director, Southern Railway, Headquarters,
Moore Market Complex, Park Town PO, Chennai - 600 003.
4. The Divisional Personnel Officer, Southern Railway,
Thiruvananthapuram Divisional Office, Thiruvananthapuram-695 014.
5. The Divisional Railway Manager, Southern Railway,
Thiruvananthapuram Divisional Office,
Thiruvananthapuram - 695 014. . . . Respondents
(By Advocate : Mr. Sunil Jacob Jose)
3. Original Application No. 180/00644/2015 -
K. Muraleedharan Nair, aged 57 years, S/o. Krishnankutty Nair,
Senior Trackman/Varkala, (SSE/P.Way/Varkala/Southern Railway,
Trivandrum Division, Residing at : Manalivila Veedu,
Edakkodu, Nemom PO, Thiruvananthapuram. ... Applicant
(By Advocate - Mr. T.C. Govindaswamy)
Versus
1. Union of India, represented by the General Manager,
Southern Railway Headquarters Office, Park Town PO,
Chennai - 600 003.
2. The Chief Medical Superintendent, Railway Hospital,
Pettah, Thiruvananthapuram - 695 037.
3. The Chief Medical Director, Southern Railway, Headquarters,
Moore Market Complex, Park Town PO, Chennai - 600 003.
4. The Divisional Personnel Officer, Southern Railway,
Thiruvananthapuram Divisional Office, Thiruvananthapuram-695 014.
5. The Divisional Railway Manager, Southern Railway,
Thiruvananthapuram Divisional Office,
Thiruvananthapuram - 695 014. ... Respondents
(By Advocate : Mrs. K. Girija)
4. Original Application No. 180/00008/2016 -
M. Abdul Nazar, aged 55 years, S/o. C.A. Moideenkutty,
Pointsman 1, Southern Railway, Alappuzha, Residing at :
Palakkamuriyil House, Nettor PO, Ernakulam District -
682 040. ... Applicant
(By Advocate - Mr. T.C. Govindaswamy)
Versus
1. Union of India, represented by the General Manager,
Southern Railway Headquarters Office, Park Town PO,
Chennai - 600 003.
2. The Chief Medical Superintendent, Railway Hospital,
Pettah, Thiruvananthapuram - 695 037.
3. The Chief Medical Director, Southern Railway, Headquarters,
Moore Market Complex, Park Town PO, Chennai - 600 003.
4. The Divisional Personnel Officer, Southern Railway,
Thiruvananthapuram Divisional Office, Thiruvananthapuram-695 014.
5. The Divisional Railway Manager, Southern Railway,
Thiruvananthapuram Divisional Office,
Thiruvananthapuram - 695 014.
6. The Chief Medical Superintendent, Railway Hospital,
Olavakkode, Palakkad - 678 002. ... Respondents
(By Advocate : Mrs. K. Girija)
5. Original Application No. 180/00009/2016 -
N. Krishna Moorthy, aged 55 years, S/o. Nachimuthu,
Pointsman 1, Southern Railway, Nagercoil Junction,
Residing at : Railway Quarters No. 45-A, Nagercoil
Railway Station, Kottar PO, Nagercoil. ... Applicant
(By Advocate - Mr. T.C. Govindaswamy)
Versus
1. Union of India, represented by the General Manager,
Southern Railway Headquarters Office, Park Town PO,
Chennai - 600 003.
2. The Chief Medical Superintendent, Railway Hospital,
Pettah, Thiruvananthapuram - 695 037.
3. The Chief Medical Director, Southern Railway, Headquarters,
Moore Market Complex, Park Town PO, Chennai - 600 003.
4. The Divisional Personnel Officer, Southern Railway,
Thiruvananthapuram Divisional Office, Thiruvananthapuram-695 014.
5. The Divisional Railway Manager, Southern Railway,
Thiruvananthapuram Divisional Office,
Thiruvananthapuram - 695 014.
6. The Chief Medical Superintendent, Railway Hospital,
Olavakkode, Palakkad - 678 002. ... Respondents
(By Advocate : Mrs. K. Girija)
These applications having been heard on 29.08.2016, the Tribunal on
30.08.2016 delivers the following:
COMMON ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
The applicants in these cases have a common grievance that their wards having been found medically unfit for employment under the Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS) they and their wards are denied of the benefits of the Scheme. LARSGESS is a safety related scheme facilitating the employees who do strenuous nature of work in the safety categories of employments in the railway, taking into account of the diminishing physical capacity of such employees as they progress in their age, retaining them in service would be hazardous to the safety of the railway passengers. In short, it is a scheme enabling the senescent employees to voluntarily retire from service and to facilitate the ward of such employees to be considered for appointment in the same category from which they opt for voluntary retirement. In other words, it is a scheme reckoning the senescent deterioration of the physical capacity of such Railway employees of whom arduous physical labour is demanded. The Railway Board letter dated 2.1.2004 (RBE No. 04/2004 gives the main features and the mode in which the scheme is put into operation. It reads: 'RBE No.04/2004
Boardb�s letter No. E(P&A)I/2001/RT-2(KW) dated 2.1.2004 (RBE No.04/2004) Sub: Safety Related Retirement Scheme - Drivers and Gangmen. Arising out of deliberations in the Workshop on Safety on Indian Railways conducted on 12th and 13th of July, 2003 the Ministry of Railways have decided to introduce a Safety Related Retirement Scheme for the categories of Gangmen and Drivers.
The main features of the Scheme are as follows:-
i) The Scheme may be called Safety Related Retirement Scheme. The Scheme will cover two safety categories viz., Drivers (excluding shunters) and Gangmen whose working has a critical bearing on safety of train operations and track maintenance. The scheme has been framed on the consideration that with advancing age, the physical fitness and reflexes of staff of these categories deteriorate, thereby causing a safety hazard.
Drivers: This category is directly responsible for the running of trains. Running duties demand continued attention and alertness. The element of stress combined with uncertain hours of work entailed in the performance of running duties over long periods of time tend to have a deleterious psychosomatic effect on their health. There is a slowing down of reflexes with the passage of time making them vulnerable to operational lapses.
Gangmen: This category is responsible for the proper maintenance of tracks. Their duties involve heavy manual labour in the laying of tracks, repair of tracks, patrolling etc. Unlike Workshops/locosheds, all this labour is performed in the open environment, they are subjected to the vagaries of extreme weather conditions, non-availability of fork lifts, EOT cranes, wheel barrow etc. As a result the infirmities associated with the aging processes and spinal and back problems catches up quite early in life.
These categories, work in conditions, in which fatigue sets in earlier, than in the case of staff who work indoors or within station limits or in depots and workshops. Although the other categories nomenclatured as safety categories also have a vital role to play in ensuring operational safety, the nature of their duties, is less arduous. Therefore no other category other than Gangmen and Drivers is included in the Scheme. For the same reason, shunters who perform less strenuous, shift wise, duties within station yards, will also not be included in the scheme.
ii) Under the Scheme, Drivers and Gangmen in the age group of 50 to 57 years may seek retirement.
iii) Employment to a suitable ward of the employee, whose application for retirement under the scheme is accepted, will be considered.
iv) The employee should have completed 33 years of qualifying service in order to be eligible for seeking retirement under this scheme.
v) The request for retirement will be on a voluntary basis and there will be no element of compulsion on the part of the Administration.
vi) The ward will be considered for appointment only in the lowest recruitment grade of the respective category from which the employee seeks retirement, depending upon his/her eligibility and suitability, but not in any other category.
vii) Applications from those who propose to retire under this scheme will be taken once in a year. The cut off date for reckoning the eligibility of employees for seeking retirement under this scheme will be 30 th June of the respective year. All conditions of appointment for the ward of such retires such as age limits, educational qualifications etc. will also be determined with reference to that date.
viii) The last date for submission of requests for retirement and consideration of a ward for appointment under the scheme, will be the 31 st of July of the respective year.
ix) Employees who desire to withdraw their requests for retirement may be allowed to do so, not later than 30th September of the respective year. No request for withdrawal of request will be entertained thereafter.
x) The discretion to accept the request for retirement will vest with the administration depending upon the shortage of staff, physical fitness and the suitability of the ward for appointment in the category of Driver/Gangmen as the case may be.
xi) Those who have completed 33 years of qualifying service and are in the age group of 55 to 57 years would be considered in the first phase of the scheme to be followed by those in the age group of 53 years onwards but less than 55 years.
xii) The conditions of eligibility, in the case of wards, being considered for appointment would be the same as prescribed for direct recruitment from the open market.
xiii) Suitability of the wards will be assessed in the same manner as is being done in the case of direct recruitment. The assessment will be done through respective Railway Recruitment Boards. The request of the employee for retirement under this scheme would be considered only if the ward is considered suitable for appointment in all respects, including medical fitness.
xiv) Since the Safety Related Retirement Scheme is a package having no nexus with any of the existing scheme, no weightage towards qualifying service will be admissible to the employee who seeks retirement under this scheme. The wards appointed under this scheme will not be allowed to change their category, except as is being allowed under the already existing rules.
xv) For the purpose of reckoning eligibility for residential accommodation, wards appointed under this scheme will be treated at par, with those appointed through direct recruitment, from the open market; the terms of regularisation of accommodation as applicable to the wards of employees appointed on compassionate basis, will not be applicable in their case.
3. After the successful implementation of the first phase of the scheme, the implementation of the second phase covering employees with less than 33 years of qualifying service would be considered for clearance by the Railway Board.
4. The Scheme will come into force from the date of issue of this letter. This issues with the concurrence of the Finance Directorate of the Ministry of Railways.'
2. As per Annexure A2 (in OA No. 180/589/2015) RBE No. 131/2010, dated 11.9.2010 the scheme is limited to the staff in the safety category with Grade Pay of Rs. 1,800/- per month with a qualifying service of 20 years and within the age group of 50 to 57 except for Drivers for whom 33 years of qualifying service and the age group within 55 to 57 years has been prescribed.
3. Applicants in these cases belong to the categories of Pointsmen and Trackmen working under the respondent Railway. Having found themselves qualified for voluntary retirement under the LARSGESS scheme they sent requests to the respondent authorities to consider their ward for employment in the Railway as per the Scheme. Their wards were duly called for medical examination and were found to be unfit for Railway employment. In OA No. 180/350/2015 the applicant was informed that on medical examination his ward has been found totally unfit for Railway employment. In OA No. 180/589/2015 the applicants allege that no final order has been communicated to them regarding their request for appointment under the LARSGESS scheme even after medical examination of the ward was conducted. In OA No. 180/644/2015 it was informed to the applicant vide Annexure R1 that his ward was certified unfit for Aye and Bee one categories in Railway service. In OAs Nos. 180/8/2016 & 180/9/2016 the Railway has notified that the applicants therein are not entitled to avail voluntary retirement under the LARSGESS scheme as their wards were not found fit under the required medical classification (Aye two / Bee two).
4. Respondents filed reply statement contending that the request of the applicant were duly considered and that their wards have been subjected to medical examination. According to the respondents it was on account of the situation that their wards have not been found medically fit for Railway employment they were not considered for employment their requests for voluntary retirement under LARSGESS scheme were not considered.
5. In OA No. 180/589/2016 the 1st applicant nevertheless, seems to admit that his ward was subjected to medical examination at the Railway Hospital at Thiruvananthapuram, Pettah.
6. Heard the learned counsel for the parties. Perused the record.
7. The applicants in these OAs seem to challenge the action of the respondents Railways on two premises. Firstly, according to the applicants no sufficient opportunity was given to the wards of the Railway employees in all these cases to appeal against the decision of the medical authorities. The applicants contend that as per paragraph 522 of the Indian Railway Medical Manual there is a provision for preferring an appeal against the adverse report of the medical examination in respect of the candidates for Railway employment. According to the aforesaid provision, a re-examination of the candidate will be allowed if he produces the evidence about the possibility of an error of judgment in the decision of the 1 st medical authority by producing certificate from a medical practitioner who should write a note in the medical certificate to be issued by him that it has been given in full knowledge of the fact that the candidate has already been rejected as unfit for service by the medical authorities appointed by the Railway/Government. A correction slip has been issued by the Railway Board vide its communication dated 5.6.2014 whereby the candidate who has been found to be unfit on grounds of vision, colour vision, hypertension, diabetes or any other condition/disease, the medical examiner will not issue any certificate and will put up his findings to the CMO/CMS/MD/ACMS in charge. It is further stipulated that the candidate without having to submit any appeal will then be immediately examined by a three member standing medical team consisting of a specialist in the field, the medical officer who has conducted the 1 st medical examination and a senior medical officer specially nominated by the CMO/CMS/MD/ACMS in charge. The reason for such a change in procedure relating to the candidates who have been found unfit on the 1 st medical examination has been given in the aforesaid communication of the Railway Board (marked as Annexure R1(2) in OA No. 180/350/2015) dated 5 th June, 2014. It reads:
'Detailed provisions for reconsideration of adverse reports of medical examination of candidates selected for employment in various non-Gazetted posts in Railway Services and procedure for making an appeal and its disposal have been laid in Para 522(1) of IRMM. Third Edition, 2000. It is not clear from the said provisions as to who would act as the appellate authority and what would be the maximum number of appeals that are permitted. This is resulting into a number of appeals for reconsideration of the cases even though they have been declared unfit during initial medical examination. Some of the candidates have also been approaching Railway Board for reconsideration of decision of the Zonal Railways on their earlier appeals.
There have also been instances where the candidate was declared unfit by the initial medical examiner due to the candidate being hypertensive/diabetic or visual acuity problems. Some such candidates have been taken treatment and then, within the stipulated time frame, submitted an appeal for reconsideration. In such cases, it becomes really difficult for the appellate authority to come to a conclusion with regard to the candidate's original condition which was prevailing at the time of initial medical examination. The appellate authority will be in no position to disprove that the persons has been administered medicines or has undergone surgical treatment for refractive error etc. this situation calls for a permanent remedy by laying down a specific procedure for examination of candidates, consideration of their appeal in case they are declared unfit in the initial medical examination, as also disposal of subsequent appeals by higher authorities.' However,in the new revised policy of Railway Board provision for appeal is not totally done away with. Paragraphs VIII & IX of the aforementioned Railway Board letter reads:
'VII. Consideration of specific cases:-
(a) Once, the 03 member Committee has taken a decision on the grounds of conditions like hypertension, sub-standard vision and diabetes and the same has been accepted by the respective CMO/MD/CMS/ACMS in charge of the Unit/Division/Sub-Division, any representation/appeal shall be dealt with on the basis of the records and findings of the Committee and the candidate will not be subjected to re-examination.
(b) Only in specific and exceptional cases in which there is an objective record of a disease like an X-ray finding, ECG record, Echo or a permanent defect/deformity, there can be an appeal in regard to the interpretation of such a finding and such cases can be entertained as an appeal by the CMD. CMD of the zone may order for re-medical examination of such candidates if he is satisfied that there are genuine grounds for consideration of such an appeal.
Such evidence should be submitted within one month of the date of communication of the decision of the CMO/MD/CMS/ACMS in charge of the Unit/Division/Sub-Division/Production Unit to the candidate. However, such an appeal shall be entertained only if the candidate produces a certificate from a Government/Private doctor of the specialty/specialities in which the candidate has been found unfit. Such a certificate should also contain a note that the Government/Private specialist was aware of the fact that the candidate has already been declared unfit during medical examination conducted by an appropriate medical committee appointed by the Government in this regard. The government/private specialist should also certify that he is fully aware of the physical & vision standards set by the railways, and that he is aware that the candidate has already been certified as unfit according to the standards. In all cases of appeal, consultation and investigation charges as applicable, will however, be recovered separately. In case of production units, such powers for consideration of appeal shall be vested in the CMD of the neighbouring/parent zone to which the production unit belonged to earlier.
IX. For all cases, the highest level of appeal shall lie with the CMD and there is no further provision for review against the decision of a CMD i.e. in case the appeal has been rejected by the CMD or the candidate is again found unfit upon re-medical examination carried out as per the orders of the CMD, no further appeal shall lie with any higher authority including Railway Board.'
8. On a reading of the aforementioned specific administrative instructions, it can be seen that appeal is allowed only in cases where there is an objective record of disease like an X-ray finding, ECG record, Echo or a permanent defect/deformity, in regard to the interpretation of such a finding. Nothing is in record as to whether any of the applicants in these cases or their wards have preferred an appeal before the appropriate authority within the time stipulated in paragraph 222 of the Indian Railway Medical Manual and in the aforementioned letter of the Railway Board dated 5.6.2014. It is worth remembering that the time specified for an appeal is one month.
9. The second argument put forth by the learned counsel for the applicants was that the ward of the applicants could be considered for any other employment in the Railway service which does not require Aye-two or Bee- two medical classifications. Smt. Girija learned counsel for the respondents vehemently contended that LARSGESS Scheme is not a recruitment scheme but it is a facility for the physically distressed safety related employees working in the Railway to retire prematurely and to facilitate employment for their wards in the same category were Railway employee was working. Referring to clause (vi) of the Scheme she submitted that a ward of the employees opting to retire under LARSGESS Scheme is entitled to be posted in the same category the employee was working and not in other categories. She argued that unlike the scheme for compassionate appointment, LARSGESS is not a scheme for compassionate appointment in any of the Group-D posts, but is a replacement/replenishment scheme whereby an employee voluntarily retiring under the scheme is replaced by his eligible ward who will be posted in the lowest grade in the category so that the immediate juniors of the retiring employee will be getting promotions and the resultant vacancy at the junior most level will be replenished by the ward of the retiring employee. She further submitted that LARSGESS is a incentive scheme for the senescent workers in the safety category to retire early. In R. Krishna Rao v. Union of India & Ors. - OA No. 1540 of 2013 the Calcutta Bench of this Tribunal in a Full Bench decision has upheld the LARSGESS Scheme as a constitutionally valid scheme as the Railway Board has full powers for making rules for the Railway servants and as the policy involved in the LARSGESS Scheme is not unreasonable.
10. In view of the foregoing discussion this Tribunal is of the view that a ward seeking employment under the LARSGESS Scheme cannot be considered for employment in any other category except the category from which the employee is retiring.
11. Mr. Govindaswamy, learned counsel for the applicants pointed out that for the lower grades of the category of Pointsman medical standards is lower than what is required for the Pointsman of the higher grades . However, no records were produced by the learned counsel to buttress his argument. It appears that the applicants have approached this Tribunal much after the time limit for appeal prescribed under paragraph 522 of Indian Railway Medical Manual. Applicants in OA No. 180/580/2015 admit that the 2 nd applicant therein had slight deficiency in vision as revealed in the medical examination conducted on 24.4.2015 but he has filed the OA on 28.7.2015, three months after the date of such examination. The correction slip for paragraph 522 of Indian Railway Medical Manual clearly provides that in cases of special standard vision after the 2nd examination by the committee the candidate will not be subjected to re-examination.
12. Since the wards of the employees in these cases have been considered for employment in the same category of the employee i.e. safety category, it is in the interest of safety of the Railway passengers that only persons with adequate medical fitness prescribed for such categories alone can be appointed, even though LARSGESS Scheme is styled as a liberalised scheme.
13. For the foregoing reasons the OAs are dismissed. No order as to costs.
(U. SARATHCHANDRAN) JUDICIAL MEMBER b� SAb�